X

Thank you for sharing!

Your article was successfully shared with the contacts you provided.
On a characteristically hot and sunny day on the tropical island of Weno, I noticed that an overpowering smell of smoke appeared to be emanating from behind the cinderblock building housing the temporary offices of the Federal Emergency Management Agency. I had visited the FEMA offices that day in an attempt to find out what happened to administrative appeals that more than 100 of my clients had filed in response to decisions on their applications for disaster assistance after Typhoon Owen had devastated many of the islands in Chuuk State, in the Federated States of Micronesia. I was the directing attorney for the Chuuk Office of the Micronesian Legal Services Corp., a nonprofit organization funded by the national government of the Federated States of Micronesia, the four states within the FSM, and the U.S. Legal Services Corp. I soon learned from FEMA officials that the agency was closing its office that day and leaving the island. The smoke came from documents they were burning, documents connected with the disaster assistance programs FEMA had operated and that my clients would later need. At the time of the fire, neither our legal office nor our clients had received notice of the results of the appeals. The episode is just one of several unusual legal experiences that have no equal during my years of practicing law in California or Virginia — and not just because we don’t often experience typhoons on the mainland. Even with dozens of federal agencies located just a few miles from my office in Falls Church, Va., it is unlikely that I’ll ever again come across federal employees burning documents on the premises. My family had been fortunate the night of Typhoon Owen, which hit the island in November 1990. We were living on Weno in a cinderblock house with a tin roof. After the tin roof began to separate from the house and slam back on the walls, my wife, two young daughters, and I fled to the shelter of a nearby concrete building. While the next morning brought relative calm, it also revealed the devastation. Trees were upended and food crops of bananas and papayas were completely down and stripped. Numerous homes were missing roofs. Yet Weno was spared the brunt of Owen. With sustained winds of over 100 miles per hour, Owen slammed into numerous islands in Chuuk State. Many families lost their homes and possessions. On one of the outer islands, only the concrete elementary school building remained. All other homes were completely destroyed. One client told of island residents having to take refuge on the roof of an elementary school building and in canoes and boats tied to coconut trees, as huge walls of water swept completely over their low-lying atoll. Their crops were severely damaged by the wind and salt water. Within a fairly short time, then-U.S. President George Bush declared Chuuk State a disaster area, making residents who suffered property damage eligible for FEMA-provided disaster assistance. The Federated States of Micronesia, a series of 600 islands and islets dotting a 1,750 mile expanse of the Pacific Ocean, was formally part of the Trust Territory of the Pacific Islands, a United Nations trust administered by the United States following the Second World War. In 1986, the FSM became an independent country following the ratification of the Compact of Free Association, a 15-year economic and defense treaty between the FSM and the United States. Certain U.S. programs are available to Micronesia under the compact, including FEMA and Legal Services Corp. funding. Negotiations are currently under way between the two countries to extend the compact. NINE-YEAR STRUGGLE What began the day I smelled smoke outside the FEMA office on Weno was a nine-year struggle to discover what happened to my clients’ administrative appeals and to obtain the benefits that were due them. Along the way, I discovered that a total of 202 administrative appellants, including the vast majority of my clients, had won their appeals, but that FEMA had refused to pay their appeal awards. Efforts to obtain benefits from FEMA, the FSM, and Chuuk State were unsuccessful. Eventually, I filed class actions in two countries seeking relief. I filed one action in the Supreme Court of the FSM against both the Chuuk State Government — Chuuk state-processed claims under FEMA’s supervision — and the FSM national government. Then, because the Compact of Free Association prevented naming FEMA or the United States as a party in the courts of the FSM, I also filed against FEMA in the U.S. District Court in San Francisco, where FEMA’s regional headquarters were located. The case in the FSM Supreme Court was successful, and the class received a judgment requiring Chuuk State to complete any uncompleted appeals and to pay 25 percent of all favorable appeal awards, which averaged about $1,000 each. The U.S. case had a few more turns, with the class allegations being eliminated following action by the U.S. Congress preventing legal services’ attorneys from involvement in class actions. Northern District of California Judge D. Lowell Jensen held that my clients lacked standing and that FEMA had sovereign immunity. The 9th U.S. Circuit Court of Appeals reversed, finding that FEMA lacked sovereign immunity and reinstating standing for all clients who had received a favorable appeal decision before FEMA stopped the program. Justice Sandra Day O’Connor then granted the United States two extensions of time to file a cert petition in Graham v. FEMA. However, the solicitor general’s office eventually decided not to petition. Earlier this year, my clients finally received an aggregate amount of $50,000, the majority of the FEMA disaster benefits they were entitled to receive. Additional amounts are due each client and other class members from Chuuk State under the FSM Supreme Court judgment. The FEMA case, though unusual in several respects, is illustrative of one common aspect of practice in Micronesia: An event occurred in Micronesia, but the primary actor has left the country. On a number of occasions I assisted co-workers in obtaining writs of ne exeat, preventing persons from leaving an island or fleeing the jurisdiction. I recall one man from Australia who was involved in an accident that damaged our client’s car in the state of Kosrae. He was a seaman who was leaving that day to return to his ship and set sail. My co-worker served him with the writ of ne exeat on a small boat in Okat Harbor as the Australian was traveling to his ship. A settlement of the claim was reached within a matter of hours, providing payment of damages to our client and allowing the Australian to leave the island. There were other elements of practice in the FSM that were distinctly different from my past experiences in the United States. For example, in my 14 years in the legal aid office in San Jose, Calif., it was not uncommon for an interpreter to be present in court or an administrative proceeding to translate for clients or a witness. In contrast, in Micronesia it was not uncommon in state courts for an interpreter to translate the proceedings into English for my benefit alone. The judge, court clerk, witnesses, opposing counsel, opposing party, and my client all spoke the same language, which on Chuuk was Chuukese. Almost none of the state court judges were attorneys, although that plainly did not often affect the wisdom of their decisions. Andon Amaraich, the chief justice of the FSM Supreme Court, is not an attorney. But with his experience as a longtime member of the Congress of Micronesia, as the chief Micronesian negotiator in reaching an agreement on the Compact of Free Association, and as a former foreign relations cabinet member, Justice Amaraich possesses keen insight, understanding, and temperament. I have not seen his wisdom on legal issues surpassed by other jurists. Another difference from U.S. practice is the role that Micronesian customs and traditions play in the legal system. The Constitutions of the FSM and all four states — Chuuk, Yap, Pohnpei, and Kosrae — contain provisions that court decisions must be consistent with customary law. Proof of the intricacies of customary law, which is almost entirely oral, can be a challenge. I represented a clan that claimed ownership to a parcel of land in Weno. A church also claimed to own this same land and traced its ownership to an 1884 deed from five clans, including my clients, to a predecessor missionary organization. The 1884 deed provided that the land was given for religious purposes. In 1970, the church leased the land to the government for a public high school. But under Chuukese custom, title to land would not have been given for free without an underlying obligation — the need to compensate for customary tort damages, for example. My clients claimed the lease for nonreligious purposes violated rules governing customary land transactions. I was able to locate a local chief on a nearby island who was recognized as very knowledgeable in customary land transactions. His expert testimony, prepared outside his house on a lagoon island while drinking from coconuts that fell from his trees, was instrumental in establishing our clients’ ownership of the land. The customary expert testified that the most the clan could have given the missionary organization in 1884 was a use right, and that under custom the owner of the title can take back the use right at any time when the purpose of the use is violated. An appeal to the Appellate Division of the FSM Supreme Court successfully established my clients’ ownership of the land. Other experiences I had in Micronesia may be more akin to practice in a small town than in a foreign country. For example, my wife, Nina Eejima, went to work for the Chuuk State Legislature as an assistant legislative counsel. The very first job duty she was asked to perform was to draft a bill. She instantly recognized the bill as an effort to overturn a successful judgment I had just obtained on behalf of a number of clients. She politely refused her first assignment. In this same category rests probably my most memorable experience in Micronesia. I started and then ran for five years a bar review course for Micronesians and American attorneys who desired to take the FSM bar examination. Under FSM Supreme Court rules, law school graduation is not required in order to sit for the bar. An experience component coupled with successful completion of the bar exam entitled Micronesians to practice in the FSM national court. One of my students and a co-worker, Harry Seymour, passed the FSM bar exam, becoming the first Kosraean to become an FSM attorney. A party celebrating Harry’s achievement was held in his village. Over 1,000 of the islands’ 7,500 residents attended to congratulate Harry. Tables placed together — seemingly as long as a football field — overflowed with food. Hand-woven baskets were filled with food for each person in attendance. I honestly thought that I would not eat for a week after the party. Two years ago, my family and I left the islands so that my wife could obtain her LL.M. in international environmental law at American University and to further the educational opportunities of our three children. Now that we are in Northern Virginia, the experience in Micronesia seems literally a world away: fascinating legal disputes washed down with coconuts — and no traffic. Charles Greenfield is the executive director of Legal Services of Northern Virginia. He and his family lived in the Federated States of Micronesia from 1989 to 1998. Greenfield worked for the Micronesian Legal Services Corp. as the directing attorney of the Chuuk office and the Kosrae office, and later as the litigation director for the FSM in Pohnpei. He is admitted to practice in the states of California, Maryland, Virginia, the District of Columbia, and the FSM.

This content has been archived. It is available exclusively through our partner LexisNexis®.

To view this content, please continue to Lexis Advance®.

Not a Lexis Advance® Subscriber? Subscribe Now

Why am I seeing this?

LexisNexis® is now the exclusive third party online distributor of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® customers will be able to access and use ALM's content by subscribing to the LexisNexis® services via Lexis Advance®. This includes content from the National Law Journal®, The American Lawyer®, Law Technology News®, The New York Law Journal® and Corporate Counsel®, as well as ALM's other newspapers, directories, legal treatises, published and unpublished court opinions, and other sources of legal information.

ALM's content plays a significant role in your work and research, and now through this alliance LexisNexis® will bring you access to an even more comprehensive collection of legal content.

For questions call 1-877-256-2472 or contact us at [email protected]

 
 

ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2020 ALM Media Properties, LLC. All Rights Reserved.